Whistleblowing - A Comparative Study

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G. Thüsing and G. Forst

respectively “the public interest” exactly mean? On the one hand, good faith/public interest may relate to the motivation of the whistleblower, the relevance of which we are going to investigate in the next chapter (see below at section “Is the motivation of the whistleblower relevant?”). In the context of misapprehension, a whistleblower lacks good faith/public interest if he reports false information although he should have known better. This does not generally preclude the erroneous reporting of false information from the scope of whistleblower protection, but it obliges potential whistleblowers to consider whether their allegations actually are correct. The difficulty now is to determine what a whistleblower must do to yield protection. The jurisdictions we surveyed use different criteria to draw a separation line, but the effect is comparable: In Brazil and Germany for instance, a whistleblower must not act intentionally (i.e. give false information away knowingly), but he may lose protection even if he only acts reckless or thoughtless.68 Similarly, a whistleblower loses protection in Italy if he gives away false information because of gross negligence on his part.69 Japan and the UK require the whistleblower to act in a “reasonable belief”70 that the information he relays is actually true respectively in the public interest. South Korean legislation takes a similar position, although mere negligence seems to suffice to deny a whistleblower protection in this country. The ECtHR in the Heinisch case somewhat cryptic held that a whistleblower “who chooses to disclose information must carefully verify, to the extent permitted by the circumstances, that it is accurate and reliable.”71

Is the Motivation of the Whistleblower Relevant? Closely linked with, yet distinguishable from the “good faith requirement” is the motivation of the whistleblower. If a whistleblower tells the truth – not because he wants to stop a wrongdoing, but to harm the perpetrator for personal reasons (e.g. envy or hate) – should the law protect him? Only very few countries declare the motivation of a whistleblower as being irrelevant for the level of protection granted (Austria, Brazil and Belgium [public sector]). Most of the other jurisdictions surveyed take the motivation of a whistleblower into consideration. In many jurisdictions, the motivation of a whistleblower is considered in establishing whether he acted in “good faith” (Belgium [private sector], Canada, Croatia, France, Italy, Japan, Malta, Poland, Portugal, Romania, Slovenia, Singapore, South Korea) respectively in “the public interest” (UK, since 2013). Motives recognised as harmful to whistleblower protection are, for instance, a striving for personal gain (Malta, South Korea), revenge (Portugal) or maliciousness 68

cf. Federal Constitutional Court, case 1 BvR 2049/00, Judgement of 2 July 2001. Country Report Italy II, p. 6 f. 70 Country Report Japan, p. 3; Country Report UK, p. 4. 71 ECtHR, No. 28274/08, Case Heinisch v Germany, Judgement (Chamber) of 21 July 2011, para. 67. 69


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Articles inside

STAR Sample Procedure (2010

6min
pages 331-336

Annex 2

9min
pages 341-346

Annex 1

5min
pages 337-340

of Whistle-Blowing Legislation in the United States

1hr
pages 279-328

Legal Material

2min
pages 329-330

and Other Whistleblowers in the Republic of Slovenia

36min
pages 263-278

13 Romania: First Steps to Whistleblowers’ Protection

47min
pages 243-262

from the Perspective of a Country Without Specific Legislation

19min
pages 235-242

and Case Law Dagmara Skupień

32min
pages 221-234

10 Country Report: The Kingdom of the Netherlands

40min
pages 203-220

A Personal View and Analysis David Fabri

34min
pages 187-202

6 Whistleblowing: National Report for France

1hr
pages 125-154

5 Whistleblowing: National Report for the Czech Republic

26min
pages 115-124

German Whistleblowing Law Between Conflicting Values

1hr
pages 155-180

The Cypriot Experience Constantinos Kombos

36min
pages 101-114

8 Whistleblowing: National Report for Ireland

16min
pages 181-186

3 The Protection of Whistleblowers in the Republic of Croatia

1hr
pages 73-100

Managing Disclosures by the “Up the Ladder” Principle

1hr
pages 33-72

Portugal: The Protection of the Whistleblower

1min
pages 12-13

The Whistleblowing Dilemma in Malta Continues

1min
pages 9-10

Financial Incentives and Truth-Telling: The Growth

42min
pages 15-32

Whistleblowing in Poland According to Legislation

1min
page 11

Duty to Loyalty, Fundamental Rights, and Public Policy

2min
pages 7-8

The Legal Response to Whistleblowing in Canada

0
page 2

Protection of Persons Reporting Corruption

0
page 14
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